Xu v Hurstville City Council - [2010] NSWLEC 1359

Land and Environment Court

of New South Wales

CITATION: Xu v Hurstville City Council [2010] NSWLEC 1359

PARTIES:
APPLICANT
Ying Xu
RESPONDENT
Hurstville City Council

FILE NUMBER(S): 10671 of 2010

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT MODIFICATION :- alterations and additions to an existing house
extent of demolition and whether substantially the same development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Edgar Allen Planning Pty Limited v Woollahra Municipal Council [2006] NSWLEC 681
Thomas v Pittwater Council [2003] NSWLEC 19
Stravridis v Canada Bay City Council [2007] NSWLEC 248
Moto Projects No 2 Pty Limited v North Sydney Council [1999] LGERA 298
Vasic Pty Limited v Penrith City Council

DATES OF HEARING: 3 December 2010

EX TEMPORE JUDGMENT DATE: 3 December 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr G Green, solicitor
of Pikes Lawyers
RESPONDENT
Mr P Rigg, solicitor
of Norton Rose Australia

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

3 December 2010
10671 of 2010 Xu v Hurstville City Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Hurstville City Council (council) of an application under s 96(1A) of the Environmental Planning and Assessment Act to modify a development consent (2009/DA-193) at 59 Pallamana Parade, Beverly Hills, for:

Alterations and additions to a dwelling, ground floor additions, first floor extension and detached out-building to the rear.

2 The s 96 application seeks approval for the following works which have been carried out without consent:

· increased excavation for a basement parking/storage area;

· a new retaining wall; and

· demolition of internal walls and ground floor slab.

3 The s 96 application also seeks consent to enclose a proposed first floor balcony. However, the applicant has agreed to a condition which deletes this enclosure.

4 The principal issue in dispute between the parties is whether the development, as sought to be modified, is substantially the same development as the initial consent for alterations and additions to the existing dwelling, given the nature and extent of unauthorised demolition, excavation and building works.

5 The site, its locality, the history of the proposal and the planning controls are in the Statement of Facts and Contentions.

6 A conciliation conference under s 34 of the Land and Environment Court Act was held on site on 23 November 2010. No agreement was reached and the parties agreed to me disposing of the proceedings under s 34(4)(b)(i), and that the site visit and evidence on site were evidence in the proceedings.

Evidence

7 The Court heard expert planning evidence from Mr G Chapman, for the applicant, and Mr K Kim, for the council. The key disagreement between the planners is whether the extent of demolition is alterations and additions to the existing house or a new dwelling.

8 In Mr Kim’s opinion, the external fabric of the existing building to be retained in the development consent is 66%, whereas the proposal retains…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 1359
Decision Date: 3 December 2010

CaseChat Overview and Summary

The applicant, Ying Xu, appealed against the Hurstville City Council's refusal to modify a development consent for alterations and additions to a dwelling at 59 Pallamana Parade, Beverly Hills. The proposed modifications included increased excavation for a basement parking/storage area, a new retaining wall, and the demolition of internal walls and the ground floor slab. The key issue in dispute was whether the development, as modified, was substantially the same as the initial consent, given the extent of unauthorised demolition, excavation, and building works.

The court considered the extent of demolition and whether the proposal remained alterations and additions to the existing dwelling or amounted to a new dwelling. The council's expert, Mr Kim, argued that the proposal retained only 27.5% of the external fabric of the existing building, which was substantially less than the 66% retained in the original consent. In contrast, the applicant's expert, Mr Chapman, concluded that the external fabric of the majority of the existing external walls remained unchanged, and the proposal was substantially the same as the approved development. The court found that the extent of demolition was not the sole determinant of whether the proposal was substantially the same development. A qualitative assessment was also necessary, and the court accepted Mr Chapman's conclusion that the proposal was substantially the same development.

The court also considered the council's contention that the proposal would result in non-compliances with Hurstville Development Control Plan No 1 in relation to floor space ratio and minimum side setbacks. However, the court accepted that the experts agreed that no additional or adverse impacts would result from these non-compliances. The court rejected the council's proposed condition restricting the use of the basement, finding that there was no planning justification for the condition.

The court upheld the appeal and approved the application to modify the development consent. The consent was amended as set out in annexure A, and the exhibits, except Exhibits A, F, 2, and 4, were returned.

Orders